Memo Shows Bush Administration Says to Hell With Fourth Amendment Rights

News last week of former White House lawyer John Yoo's recently disclosed 2003 memo positing, among other things, that the president's authority as commander in chief allows him to override federal laws prohibiting "assault, maiming and other crimes" against suspects in the "war on terror" was followed by a second revelation: an alarming footnote on page 8 referring to another secret memo, written shortly after 9/11, and, in the name of national security, dispensing with the Fourth Amendment.

In the age of the "war on terror," according to the footnote, the Department of Justice "recently concluded that the Fourth Amendment had no application to domestic military operations." (Emphasis in the original.)

The Fourth Amendment, of course, lays out "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Critics of the Bush administration's warrantless wiretapping program -- which was started in the same weeks the memo was written -- have staked their claims in part on its violation of this right. Proof that the program originated at the same time that the White House officially jettisoned the Fourth Amendment in the name of national security is a damning -- if not surprising -- revelation.

There's been a good deal of debate already over whether or not this 2001 memo actually laid the groundwork for the Bush administration's so-called "Terrorist Surveillance Program," which was exposed in December 2005. The White House has claimed that it had nothing to do with it, with press spokesman Tony Fratto telling reporters that the program "relied on a separate set of legal memoranda." But as the legal underpinnings of the Bush administration's vast power grab are unraveled, the memos offer a window into the radical mindset and ruthless political culture operating in the White House. As tedious and stultifying as the ongoing legislative debate over FISA has been, the Yoo memo is a sobering reminder of the lawlessness at the root of the government's spying program -- and why we should still be paying attention.

Speaking of paying attention: In case there was any doubt, no, Congress and the White House have not yet agreed upon an updated version of the FISA bill. After an endless series of discussions, false starts, shameless, 24-inspired GOP propaganda ads, and one ridiculous countdown clock -- on March 14, to Bush's dismay, the House passed a version of the FISA bill that omitted immunity for telecoms. This was the day after Bush had appeared on the White House lawn and tried to shame House members into passing the Senate version of the FISA bill, which allows retroactive immunity for telecoms. "Companies that may have helped us save lives should be thanked for their patriotic service," Bush said, "not subjected to billion-dollar lawsuits that will make them less willing to help in the future."

A few weeks later, on April 1, Politico.com reported that House Majority Leader Steny Hoyer had announced that the White House "is now in a position where they want to talk about a possible compromise" on the surveillance legislation. According to Hoyer, Congress and the Bush administration were now working in "a different environment than we were in two weeks ago." No word on what that means, but hints that the White House is willing to negotiate remain dubious. "We've seen this before," wrote True Majority organizer Ilya Sheyman in an action alert sent out on April 2. "Every month or so, the White House floats a new trial-balloon of a possible compromise bill, which inevitably includes immunity for phone companies." Indeed, rather than negotiating the legislation, the Bush administration and his followers in Congress have focused on repackaging it from month to month, with an ongoing PR campaign in between. In public, director of national intelligence Mike McConnell has indulged in Bush's fear-mongering fiction that Congress is simply pandering to their legions of money-grubbing trial lawyer supporters. Systematically distorting the debate, he has claimed, for example, that some in the Senate simply believe "we shouldn't have an intelligence community" and that others "say the president of the United States violated the process, spied on Americans, should be impeached and should go to jail." (Would that our congressman be so bold!)